Trump has been indicted before. Historians say this time is different.

Crime

“The crimes indicted are an order of magnitude beyond anything that has been committed against this country by any American citizen, let alone a former president,” said Laurence Tribe, a Harvard University legal scholar.

Former president Donald Trump speaks to supporters during a rally Saturday in Erie, Pa. Dustin Franz/The Washington Post

By Kevin Sullivan, Washington Post

August 3, 2023 | 8:49 AM

When Donald Trump was indicted in Manhattan in March, it was the first time in U.S. history that a president or former president had faced criminal charges.

On Tuesday, it happened to Trump for the third time in just over four months — and he may face even more charges before the summer is done.

Historians and legal scholars say the new indictment, brought by federal special counsel Jack Smith, is fundamentally more consequential than the earlier ones, which related to hush money paid to an adult-film actress and the alleged mishandling of classified documents.

While those are serious allegations, Tuesday’s indictment accuses a former president of the United States of attempting to subvert the democracy upon which the nation rests. And with Trump again running for the White House, the charges he faces pose an extraordinary test to the rule of law, experts say.

“This gets right to the question of how elections work, how power is transferred peacefully,” said Jon Grinspan, a curator of political history at the National Museum of American History. “This is really a question about the functioning of American democracy.”

Laurence Tribe, a Harvard University legal scholar, said, “The crimes indicted are an order of magnitude beyond anything that has been committed against this country by any American citizen, let alone a former president.”

“This is essentially an indictment for an attempt to overturn the republic and its most crucial process of preserving democratic governance, the process of peaceful and lawful transition of power,” said Tribe, who taught Barack Obama and advised his presidential campaign and administration.

Trump is accused in the 45-page indictment of trying to overturn the results of an election he lost, partly through his role in instigating the Jan. 6, 2021, riot at the U.S. Capitol. The indictment also lays out his efforts to block the peaceful transfer of power — a marker of stability that has long been admired, coveted and often missing in other nations.

Scholars said the act of criminally charging Trump could mark a crucial step in repairing the damage from those actions.

“Just as the tearing down of the Berlin Wall showed the weakness in the former Soviet Union, the mob on January 6 trying to use force to overturn the will of voters shocked the world and showed our democracy’s weakness,” said Rachel Kleinfeld, who studies rule of law, security and governance at home and abroad for the Carnegie Endowment for International Peace.

“Now, it’s important to show the strength of our system by demonstrating that no one, not even a former president, stands above the law,” she said. “This is more likely to restore a sense that America is back and our democracy is strong.”

The charges are all the more striking because Trump is also the leading candidate to be the Republican Party’s presidential nominee in 2024. If he returns to the White House, Trump would once again preside over a system of government that prosecutors allege he attempted to undermine. The dynamic adds substantially to the stakes in next year’s vote.

“Even before the republic was founded, Thomas Paine wrote that in America the law is king,” said historian and biographer Jon Meacham. “And if the law is supreme, if no man is above the law, then we have a constitutional republic. And if any man can be above the law, then we don’t.”

Meacham, who has helped draft speeches for President Biden and delivered a eulogy at the funeral of former president George H.W. Bush, a Republican, said the indictment will be a test of whether the rule of law in America is stronger than partisan politics.

“A real live question for the America of 2023 is: Are we up to democracy?” he said. “Are we commensurate with the challenges that it poses? Are we willing to make the sacrifices of temporal opinion and temporal victory in order to preserve a constitutional order?”

Trump has long been accused by his critics of having autocratic tendencies and a lack of respect for the U.S. Constitution. He has spoken admiringly of anti-democratic strongmen and dictators around the world, including Russia’s Vladimir Putin, Hungary’s Viktor Orban and North Korea’s Kim Jong Un.

Brazil’s former autocratic president, Jair Bolsonaro, was another Trump favorite. Kleinfeld noted that the Jan. 6 riot partly inspired Bolsonaro’s supporters to take to the streets in January over Bolsonaro’s claims that the country’s 2022 election, which he lost, was stolen from him.

Trump has based his 2024 candidacy largely on the false assertion that he won the 2020 election, which he lost to Biden. Huge numbers of his followers and Republican officials say they believe Trump. A CNN poll in May found that 63 percent of Republicans think the 2020 vote was illegitimate, and hundreds of Republican nominees who had denied or questioned the results of the 2020 contest sought state and federal office last year.

There has been no evidence of widespread fraud in the election despite dozens of court challenges, recounts and other official reviews of the voting.

The new indictment transcends chatter on social media, political speech by rivals or even a congressional inquiry. It is an official criminal charge being brought by a federal prosecutor in a court of law after an exhaustive investigation over many months.

Facing such charges is a place where no other president – former or current – has been.

President Richard M. Nixon was dogged by investigative journalists and Democratic critics for two years over the Watergate scandal. But he only resigned in the face of near-certain impeachment and possible criminal charges.

Trump has pleaded not guilty in both earlier cases, and he has denied any wrongdoing related to elections or the events leading up to the Jan. 6 riot.

The former president and his allies have repeatedly called the prosecution – along with the previous indictments, his two impeachments, investigations into his dealings with Russia and even potential future indictments in a Jan. 6-related case in Georgia – politically motivated “witch hunts” and “hoaxes.”

After Smith, the special counsel, sent him a letter two weeks ago informing him he was the target of a criminal investigation, Trump lashed out on Truth Social, his social media platform.

“Every time you see these Radical Lunatics and their partners in the Fake News Media talking about the ‘Trials and Tribulations’ of President Donald Trump, please remember that it is all a coordinated HOAX, just like Russia, Russia, Russia,” Trump wrote.

He claimed that all of the investigations were done “in order to STEAL ANOTHER ELECTION through PROSECUTORIAL MISCONDUCT at levels never seen before in the U.S. Deranged Jack Smith has already spent over $25,000,000!!!”

To some scholars of U.S. democracy, his response has only deepened a belief that Trump is undermining the American system of governance.

“He is fundamentally saying that he is the law and that anything which brings a law to bear against him undermines what he perceives as America,” Tribe said. “That’s the very inverse of what most of us think America is all about. It’s about more than any one person – however charismatic, however adored by his followers.”

Meacham called it “the vernacular of a dictator.”

“It’s politically diabolical and road tested,” he said. “I understand that’s what he would say. But it’s not true. At some point, truth has to matter. And facts have to matter. And the fact is that if you took this out of a polarized partisan climate, this wouldn’t even be a particularly close call.”

Criminal indictments against Trump have become so frequent that they can begin to feel normal. But they are anything but. His March 30 indictment in the Stormy Daniels hush money case marked the first criminal charges against any current or former president in the 234 years since George Washington took office.

After that first indictment, several historians and legal scholars said that landmark showed that no one in the United States was above the law, not even presidents. But they also cautioned that prosecuting Trump in such divisive times could lead to politically motivated, tit-for-tat prosecutions of presidents in the future.

“It would be good for no one to celebrate accountability for a former president. It’s not something to take joy in,” Kleinfeld said.

She said accountability was key to reducing violence and strengthening U.S. democracy.

“Trump keeps hoping that another mob will come to his rescue,” she said. “He’s called for that in veiled language after his arraignment in New York and every time there’s a legal action against him.”

But, she said, the vigorous prosecutions of hundreds of Jan. 6 rioters have left many of those who might have taken to the streets for Trump angry and scared.

“People are afraid of the consequences,” she said. “Accountability is quelling the mob.”